United States v. Ragland

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: WATERMAN, MOORE and HAYS, Circuit
• Citation: United States v. Ragland, 375 F.2d 471 (2nd Cir. 1967)
• Decision Date: 14 March 1967
• Docket Number: Docket 30661.,No. 191,191
• Parties: UNITED STATES of America, Appellee, v. William RAGLAND, Appellant.

375 F.2d 471 (1967)

UNITED STATES of America, Appellee, v. William RAGLAND, Appellant.

No. 191, Docket 30661.

United States Court of Appeals Second Circuit.

Argued November 21, 1965.

Decided March 14, 1967.

COPYRIGHT MATERIAL OMITTED

Jon O. Newman, U. S. Atty., for the District of Connecticut, Hartford, Conn., for appellee.

Peter B. Sullivan, Hartford, Conn., for appellant.

Before WATERMAN, MOORE and HAYS, Circuit Judges.

WATERMAN, Circuit Judge:

After a jury trial appellant was convicted in the United States District Court for the District of Connecticut for aiding and abetting a narcotics transaction prohibited by 26 U.S.C. § 4705(a) and for conspiring to effectuate such a transaction in violation of 18 U.S.C. § 371.

On January 10, 1966, Agent Wayne Valentine of the Bureau of Narcotics was riding along Barbour Street in Hartford, Connecticut, in a car being driven by Joseph Allevo, an informant of the Bureau. Clyde Wilson, who was subsequently jointly indicted with appellant,¹ was standing on Barbour Street next to a parked Chevrolet in which appellant was seated in the driver's seat. As Valentine and Allevo approached, Wilson signalled to them to stop and then he crossed the street to where they were. Upon being introduced by Allevo to Valentine, Wilson offered to sell Valentine three "treys" (packages of narcotics worth $3.00 at New York City prices) for $27.00, took that amount of cash from Valentine, and returned to and entered the Chevrolet. Appellant then pulled the Chevrolet alongside Valentine's car, and Wilson told Valentine, in appellant's presence, that "the man" could only sell him "nickel" packages ($5.00 packages at New York City prices). Valentine requested two "nickels" and followed the Chevrolet, with appellant at the wheel, to an apartment building, later shown to be Wilson's residence, and upon arrival there Wilson walked back to Valentine's car, told him the price of "nickels" would be $11 each and returned $5.00 to Valentine to reflect the adjustment. Wilson and appellant then entered the building together and a moment later Wilson returned alone with the narcotics for Valentine.

That evening Valentine and Allevo passed appellant's parked Chevrolet in which appellant was sitting. Wilson, who was standing at the curb, asked them to park around the corner to await the results of his discussion with his "man" about arrangements to go to New York City. A few minutes later appellant's car pulled alongside Valentine's and a second conversation between Wilson and Valentine took place in appellant's presence. Valentine specifically asked Wilson if he had "narcotics" with him. Wilson replied in the negative but added that "Bill" was going to New York City and would return the next day with a full supply. During this conversation the term "narcotics" was expressly mentioned several times within appellant's hearing.

The next day Wilson confirmed to Valentine that his "man" would return from "the city" that evening and that Valentine would have to wait for him to arrive if he wanted more "stuff."

Nine days later, on January 20, Wilson, riding with appellant in appellant's Chevrolet, signalled Valentine and Allevo to pull over to the curb with their car, and the Chevrolet parked behind Valentine. Wilson got out of the Chevrolet and offered to sell Valentine two "treys" for $14.00. Valentine agreed to the price and then Wilson returned to appellant's car. Both cars, with appellant's car in the lead, proceeded for some distance and stopped. Wilson got out of the Chevrolet, walked back to Valentine's car, received the money from Valentine and handed it to appellant. Appellant then walked away from Wilson and Valentine and returned a few minutes later with two glassine envelopes which he gave to Wilson. Wilson delivered the envelopes containing a white powdery substance, later shown to be non-narcotic, to Valentine.

Later that evening, Valentine spotted Wilson and appellant and told Wilson that the "stuff" given them was "turkey" or no good. After tasting the powder, Wilson shouted back toward appellant, "Bill, what did you give these guys?" Appellant made no reply. Wilson then told Valentine he would straighten everything out, and appellant and Wilson left together.

The above narrative sets forth the uncontradicted testimony of Agent Valentine at appellant's trial. Another Bureau of Narcotics agent and a Hartford police officer attested to their surveillance of these meetings and corroborated the incidents that Valentine related. Allevo, the informer, died prior to trial. The defense produced no witnesses.

On this appeal, appellant contends that: (1) he was denied his Sixth Amendment right to a trial by an impartial tribunal because jurors who were on the jury that convicted him had previously sat on juries in other narcotics prosecutions involving defendants who had been indicted at the same time as appellant, and these jurors had heard the same chief government witness, Agent Valentine, testify at those trials; (2) the trial court erred in admitting into evidence certain testimony of Valentine recounting statements made by Wilson, appellant's alleged co-conspirator, spoken outside of appellant's presence, because when the statements were admitted into evidence the Government had not yet established, prima facie, the concert of action between the declarant and appellant prerequisite to the hearsay exception that permits the introduction of such statements; and (3) the trial court erred in instructing the jury to consider such statements only if they otherwise found a prima facie case to have been established against appellant. As we point out hereafter, none of these claims require a reversal of appellant's conviction.

I. The Impartial Tribunal

On this appeal appellant urges for the first time that he was prejudiced by the presence on the convicting panel of seven jurors who had sat on one prior narcotics trial and two others who previously had heard two cases in which the chief government witness, Agent Valentine, had testified, and in which the Government had obtained convictions.

The jury was drawn and impaneled on Thursday, April 7th. Voir dire questions to the jury panel were propounded by the trial court. Counsel for appellant was invited by the court to ask additional questions but declined to do so. He exercised only one of the ten peremptory challenges allowed to appellant. He made no challenges for cause and did not challenge the array.

It does not appear whether appellant's counsel was aware of the prior jury service of these nine jurors when the jury was selected on April 7, but from the situation as it is pictured to us on appeal it is certain that both appellant and his counsel should have been aware of it prior to April 12, the day on which the trial itself began. Nevertheless, though having had five days in which to acquaint themselves with the previous jury activities of these jurors chosen on April 7, neither appellant nor appellant's counsel on April 12 made any objection to the composition of the jury at that time. They did not attempt to challenge the jury or any of the individual jurors and there was no motion made for a mistrial. So far as appears, the trial court during the course of the trial was never informed of any claim that the jury might not be an impartial one.

Failure to object to the composition of the jury has long been held to result in a waiver of the right of the accused to be heard by an impartial jury. United States ex rel. Marshall v. Snyder, 160 F.2d 351, 353 (2 Cir. 1947); Graham v. United States, 257 F.2d 724, 729 (6 Cir. 1958); Harbold v. United States, 255 F.2d 202, 205 (10 Cir. 1958); Fabian v. United States, 358 F.2d 187, 191 (8 Cir. 1966).

As the burden of proving prejudice rests with the challenger, Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), quoting from Reynolds v. United States, 98 U.S. 145, 157, 25 L.Ed. 244 (1878), Beck v. Washington, 369 U.S. 541, 558, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962), the purpose of requiring that the fitness of a juror be challenged at the inception of trial is to permit an inquiry into his impartiality at a time when he can be replaced if shown to be biased. Were the rule otherwise, a defendant could, as appellant seeks to do herein, fail timely to exercise his challenges and, after verdict, claim prejudice on appeal if the verdict displeases him. In the instant case, for example, all nine jurors appellant now suggests may well have been partial could have been removed from the panel by the exercise of the nine unused peremptory challenges. To give an accused a second trial each time he doubts, after an unfavorable verdict, the objectivity of jurors, would seriously impede the processes of justice.

In view of our conclusion that appellant waived his right to challenge the jury by failing to make proper objections at trial, we need not decide, and we are not required to express an opinion, as to whether, if the point had been preserved by proper objection below, the previous participation of jurors in similar cases involving identical witnesses, but dealing with different transactions and different defendants, would bar the jurors from sitting on a subsequent case.²

Appellant's claim of partiality due to excessive publicity must also fail. Unlike Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), the present record is barren of any indication that the jurors were ever exposed to such an improper influence, much less that any of them were prejudiced by an exposure. See Finnegan v. United States, 204 F.2d 105, 110 (8 Cir.), cert. denied, 346 U.S. 821, 74 S.Ct. 36, 98 L.Ed. 347 (1953). Moreover, as undue influence resulting from excessive pre-trial publicity is a sufficient basis for...